Amendments For a New Era
By: Kevin Bank and Emily Cooper
In June 2016, the Washington Supreme Court adopted significant amendments to the Admission and Practice Rules (APRs) relating to character and fitness proceedings.1 The amendments were recommended for adoption by the WSBA Board of Governors following a thorough review of the rules by a work group convened in 2014.
The DOJ letter and resulting settlement agreement focused primarily on Louisiana’s bar exam application questions and its conditional admission policies and procedures (Washington’s rules do not permit conditional admission). The work group examined the DOJ’s analysis of the Louisiana bar exam application questions and Louisiana’s other methods of obtaining information related to an applicant’s health diagnosis. At that time, similar bar exam application questions were being used by many other states, including Washington.
For instance, both Washington and Louisiana asked applicants whether they have been diagnosed with or undergone treatment for any mental health condition in the past five years and to state whether, if untreated, this condition would impact their ability to practice law. The DOJ’s view as expressed in its letter of findings to the Louisiana Supreme Court was that such questions improperly single out applicants with mental health conditions and “as currently written, appears rooted in unfounded stereotypes about individuals with these diagnoses, and is not appropriately tailored to assess the applicant’s current fitness to practice law.” 5
The DOJ also stated in the letter that requests for treatment records based solely on applicants identifying as either seeking treatment or having a mental health condition are prohibited by Title II of the ADA, which prohibits requirements “based on speculation, stereotypes, or generalizations about people with disabilities, rather than actual risks.” 6
In sum, inquiries about conduct are permitted, but ones about a health diagnosis or condition must be narrowly tailored. The
Applicants taking the winter 2017 bar exam will be the first in our state to use the modified bar application, and the amended APRs are already being used for
1 – Changes in the definition of “character and fitness”
The amended APRs, like the prior version,
Under the prior rules, fitness was defined as the “absence of any current mental impairment or current drug or alcohol dependency or abuse, which, if extant, would substantially impair the ability of the applicant, Bar Association member, or petitioner to practice law.”
In contrast, the amended rules define fitness as a record of conduct that establishes that the applicant meets essential eligibility requirements for the practice of law. 12
The essential eligibility requirements are defined as:
• The ability to exercise good judgment and to conduct oneself with a high degree of honesty, integrity, and trustworthiness in financial dealings, legal obligations, professional obligations, professional relationships, and in one’s professional business.
• The ability to conduct oneself in a manner that engenders respect for the law and adheres to the Washington Rules of Professional Conduct. • The ability to diligently,
• The ability to competently undertake fundamental lawyering skills such as legal reasoning and analysis, recollection of complex factual information and integration of such information with complex legal theories, problem solving and recognition, and resolution of ethical dilemmas.
• The ability to communicate comprehensibly with clients, attorneys, courts, and others with or without the use of aids or devices.
Similar factors have been used in other states that have adopted a conduct-based approach to fitness.
Although the definition of fitness has changed,
The amended rules also maintain the approach whereby the Character and Fitness Board
However, there are no longer a separate set of factors that apply to cases involving drug or alcohol abuse or mental impairment. Examples of factors carried over from the prior rules are unlawful conduct, academic misconduct, making false statements on a bar application,
The factors to be considered in aggravation and mitigation, such as
2 – Changes regarding inquiries when
abuse issues arise in the admissions process It is not unusual for bar applicants to voluntarily disclose information about a health or substance abuse issue to explain past conduct. For example, an applicant might reveal that a severe episode of depression contributed to chronic absenteeism in past employment. Such information could also be disclosed to the WSBA by a third party, as when a court record obtained by the WSBA indicates that the applicant was ordered to attend anger-management classes or obtain substance abuse treatment.
Under the amended rules, when such information
As in the past, the Character and Fitness Board has the authority to order an independent medical examination (IME) of the applicant; however, an IME can only be ordered if all other levels of inquiry have been completed and only after testimony and evidence presented at the character and fitness hearing fails to resolve the Character and Fitness Board’s concerns. Under the amended rules, an applicant has 30 days to provide rebuttal information to any ordered IME from his or her treating physicians. 18
3 – Changes to questions on applications for admission
WSBA applications for admission no longer include questions about whether an applicant has “experienced, been diagnosed with, or undergone treatment” for any mental health condition or substance abuse. Instead, the focus is on whether the applicant has engaged in specific conduct that impacts the essential eligibility requirements. For example, there are
4 – Updated nondiscrimination policy
The prior version of the rules specified factors the Character and Fitness Board could not consider, including racial or ethnic identity, sex, political beliefs, and others. 19 This led to some confusion as it was unclear whether those factors could be considered or raised by the Character and Fitness Board as a positive factor for the applicant — for
The goal in enacting the amended APRs was to properly balance the federal and state protections afforded to people with disabilities and the corresponding obligation to ensure that all applicants have the requisite good moral character and fitness to practice law in a competent and professional manner. Consistent with the guidance from the DOJ, these modifications will ensure that all applicants, regardless of their disability status, have the essential eligibility requirements to practice law in our state.
1 APR 20-25 (amended effective Sept. 1, 2016).
2 More information regarding DRW’s role leading
up to the work group can be found on its
3 RCW 49.60.010 prohibits discrimination
“against any of its inhabitants because of
race, creed, color, national origin, families
with children, sex, marital status, sexual
orientation, age, honorably discharged veteran
or military status, or the presence of
any sensory, mental, or physical disability
or the use of a trained dog guide or service
animal by a person with a disability.” RCW
49.60.215 also prohibits any unfair practice
that “directly or indirectly results in any distinction,
restriction, or discrimination.”
4 Settlement Agreement Between the United
States Department of Justice and the Louisiana
Supreme Court Under the Americans with Disabilities
Act, Aug. 14, 2014; see also February
5, 2014, United States Department of Justice
letter to Louisiana Supreme Court (DOJ letter)
available at www.bazelon.org/LinkClick.
(last retrieved on Sept. 6, 2016).
5 DOJ Letter at page 22.
6 Id. at 26 (citing to 42 U.S.C. § 12101(a)(7); 28
C.F.R. § 35.130(h)).
7 Beginning in the 1970s, bar admission applications
began to include questions as to whether
the applicant had mental health disorders
and/or substance addictions. An affirmative
response required the applicant to consent to
disclosure of the names of treatment providers
and medical records. See Andrea Stempien,
“Answering the Call of the Question: Reforming
Mental Health Disclosure During Character
and Fitness to Combat Mental Illness in the
Legal Profession,” U. Det. Mercy L. Rev. 1, 4-5
(Winter 2016); see also “Suffering in Silence:
The Tension Between Self-Disclosure and A
Law School’s Obligation to Report,” Conference
Panel on Assisting Law Students with
Disabilities in the 21st Century, 18 American
University Journal of Gender, Social Policy
& the Law 121 (2009). After the passage of
the ADA in 1992, certain questions, particularly
broad based inquiries about whether
an applicant had ever suffered from a mental
impairment, were held to violate the Act. See,
e.g., Ellen S. v. Florida Board of Bar Examiners,
859 F.Supp. 1489 (S.D. Fla. 1994); Clark v. Virginia
Bd. of Bar Examiners, 880 F. Supp. 430,
442-43 (E.D. Va. 1995) (finding that questions
requiring individuals with mental disabilities
to subject themselves to further inquiry and
scrutiny discriminate against those with mental
disabilities); Medical Society of New Jersey
v. Jacobs, 1993 WL 413016 at *7 (D. N.J. 1993)
(refusing to allow questions that substitute an
inquiry into the status of disabled applicants
for an inquiry into the applicants’ behavior
and place a burden of additional investigations
on applicants who answer in the affirmative).
More narrowly tailored questions limiting
the time period asked about and/or relating
to specific diagnoses were held to not be in
violation of the ADA. See, e.g., Applicants v.
Texas State Board of Law Examiners, 1994 W.L
923404 (W.D. Texas, Oct. 11, 1994). Title II of
the ADA prohibits policies that are based on
“mere speculation, stereotypes, or generalizations
about individuals with disabilities.” See
28 C.F.R. § 35.130(h); 42 U.S.C. § 12101(a)(7)
(criticizing unequal treatment “resulting from
stereotypic assumptions not truly indicative
of the individual ability [of people with disabilities]
to participate in, and contribute to,
society”). See also S. Rep. No. 116, 101st Cong.,
1st Sess., at 7 (1989) (discussing the “false presumptions,
patronizing attitudes, ignorance, irrational
fears, and pernicious mythologies” surrounding
disability; H.R. Rep. No. 485, 101st Cong.,
2d Sess., pt. III, at 25 (1990) (noting that “many
of the problems faced by disabled people are
not inevitable, but instead are the result of
discriminatory policies based on unfounded,
outmoded stereotypes and perceptions, and
deeply imbedded prejudices towards people
8 The submitted comments can be viewed here:
rules.commentDisplay&ruleId=487 (last retrieved
Sept. 6, 2016).
9 APR 24.1 (c) (amended effective Sept. 1, 2016).
10 RCW 49.60.010 and RCW 49.60.040(7).
11 APR 22(a) (version in effect until Sept. 1,
12 APR 20(d) (amended effective Sept. 1, 2016).
13 APR 20(c) (amended effective Sept. 1, 2016).
14 These factors are distinct from the essential eligibility
requirements, although there is some
overlap between the two.
15 APR 21(a)(10) and APR 21(a) (13) (amended
effective Sept. 1, 2016).
16 APR 21(b) (1-9) (amended effective Sept. 1,
17 APR 22.1(e) and (f) (amended effective Sept. 1,
18 APR 24.1(f) (amended effective Sept. 1, 2016).
19 APR 24.2 (e) (version effective before Sept. 1,
20 APR 21(c) (amended effective Sept. 1, 2016)
(referencing RCW 10.60.010).
A lengthier version of this article originally appeared in